Corporate Manslaughter and Corporate Homicide Bill

Before I came to the House, I was a personal injury lawyer. Indeed, I suppose that I still am, although I no longer take any cases. I refer hon. Members to my entry in the Register of Members’ Interests. As a personal injury lawyer, I represented many families bereaved by avoidable accidents, including major incidents such as Zeebrugge and the King’s Cross fire. Most of the cases, however, involved the deaths of individuals such as motorists, employees and pedestrians, which went unremarked in the press. But the feeling of loss and sense of injustice suffered by the victims’ families were the same as the feeling of loss and sense of injustice suffered by those bereaved by the major incidents. Three days after the terrible tragedy at King’s Cross, my investigations on behalf of the bereaved and injured led me to inspect what was left of the tube station. Nothing that I had previously experienced could have prepared me for the sights and smells of the fire’s devastation that I encountered there. As I took statements from victims, distraught relatives, firefighters and tube staff, and as I sat through the public inquiry day after day, hearing over and again about the failures of the management of London Underground Ltd, it struck me as outrageous that neither the company nor any of its managers would face criminal proceedings over those 31 unnecessary deaths. That was because of the inadequacies of the criminal law, and since then I have been campaigning to rectify those inadequacies. The Bill intends to correct them, 20 years after the horrors of Zeebrugge and King’s Cross, 10 years after the royal commission’s recommendations for change, and six years after my own private Member’s Bill. While I naturally prefer the wording of my own Bill, which was simple and effective, I believe that, despite containing shortcomings on which we shall have to focus, this Bill makes some progress towards achieving our aims. I have long believed that we need a new law based on three principles. First, when the conduct of a company’s management falling far below what can reasonably be expected is the cause—or one of the causes—of a person’s death, that company must answer to the criminal courts. Secondly, if the company is convicted, the court should not only be able to punish it severely but have the power to order it to put right the failings that caused the death. Thirdly, and perhaps most important, there is a need to impose on the senior management of a company an overarching responsibility for the health and safety of its work force and, equally important, of the general public. The Joint Committee on Human Rights, which I chair, reported on the Bill today. There is a clear obligation under article 2 of the European convention on human rights to secure the right to life by putting in place effective criminal provisions to deter the commission of offences against the person, backed by appropriate law enforcement. In certain circumstances, this obligation requires the state to ensure that recourse to the criminal law is possible against both private and public bodies in serious cases of unintentional deaths. In the Committee’s view, there is a clear obligation under article 2 to introduce an offence of corporate manslaughter that would enable recourse to the criminal law against both private and public bodies in circumstances in which that is not possible under the present law, where such recourse would be required under article 2. The Committee therefore welcomes the objective of the Bill as a human rights-enhancing purpose. For me, however, the acid test will be whether it will be easier to prosecute. Thinking back to the disasters of the 1980s and subsequently, would prosecutions that failed at the time—or that were never even brought—have succeeded if these provisions had been available? I am worried that the original, broader, definition—used, for example, in the 2000 consultation—that referred to ““undertakings”” has been removed so as to exclude unincorporated associations. It is suggested that small businesses in this category—against which prosecutions have succeeded under the existing law, which is being abolished by the Bill—would see cases brought against a named trader alone, and that large partnerships such as accountants and lawyers are low risks. The hon. Member for Beaconsfield (Mr. Grieve) gave a good example in relation to Lloyd’s. But what of architects, for example—who often practise in partnerships—who design a building that collapses, or is gutted by fire, due to grossly negligent design? Schools, clubs and even trade unions are outside the current scope of the Bill. The Joint Committee on Human Rights considered whether these various restrictions on the scope of the new offence were incompatible with the right not to be discriminated against in the enjoyment of convention rights under article 14 of the European convention, in conjunction with the right to life in article 2. In my Committee’s view, article 14 is engaged because the various restrictions, exclusions and exemptions give rise to differential treatment of individuals in analogous situations in relation to their access to the criminal law in respect of negligently caused death. The Committee noted that, in the 2000 consultation paper, the Government accepted that to restrict the scope of the offence by excluding unincorporated bodies"““could lead to an inconsistency of approach and these distinctions might appear arbitrary.””" To avoid that risk of arbitrariness, the Government at that stage proposed that the new offence should apply to ““undertakings””, which would include unincorporated as well as incorporated bodies. In the case law of the European Court of Human Rights, the public nature of a body’s function has not been regarded as a reason for excluding criminal liability, but on the contrary has been treated as a factor which strengthens the obligation to ensure that recourse to the criminal law is available. The obvious answer is to revert to the original proposal to apply the new offence to ““undertakings””. I very much welcome the extension of the Bill to apply to the Crown, as does the Human Rights Committee. However, my Committee considers that the restrictions, exemptions and exclusions in the Bill will preclude the possibility of prosecution for corporate manslaughter in precisely those contexts in which the positive obligation in article 2 is at its strongest, and in which a criminal prosecution should be brought: the use of lethal force by the police or army; deaths in custody; and deaths of vulnerable children who should be in care—to name just a few examples. This would mean that, in situations in which responsibility for the death lay with a management failure in a public body, rather than with any identifiable individual, recourse to the criminal law would not be possible. In a sufficiently serious case, that would be likely to lead to the United Kingdom being found to be in breach of its positive obligation under article 2 to put in place an effective system of judicial remedies, including, in certain circumstances, recourse to the criminal law. In particular, this would apply to deaths in custody. It is not enough to say that there are extensive provisions to investigate these deaths already. So there are, too, for transport accidents, chemical plant explosions, or the humble factory death. Individual prosecutions are not the answer either. There is no logical reason to exclude institutional operational failures, which may lead to a death in custody, from the provisions of the Bill. In our report, the Committee gives an example to demonstrate this point. The Metropolitan Police Commissioner is currently being prosecuted under the Health and Safety at Work etc. Act 1974 in respect of the shooting of Jean Charles de Menezes. If the Bill becomes law unamended, and if, hypothetically, there were clear evidence that a similar shooting was the result of gross negligence on the part of the senior management of the Metropolitan police, but was not attributable to one individual officer who could be described as the controlling mind of the organisation, it would not be possible for the Metropolitan police as a public authority to be prosecuted in respect of the death. It would still only be possible to bring proceedings against the Metropolitan police as a public authority under health and safety legislation, as now, for a much less serious offence. In such circumstances, there would be a strong likelihood that the United Kingdom would be found to be in breach of the positive obligation in article 2, because the criminal offences charged did not reflect the seriousness of the conduct which led to the death, and the judicial system in place was not adequate to secure the full accountability of state authorities for their role in the death.